The 1978 Constitution in the history of constitutionalism in Spanish

The Constitution of Spain is situated in the context of the political right of the second post-war world, but with own peculiarities of the texts born in the third wave of democratization, which in the 70 years of the TWENTIETH century extended the freedoms by the European south. If to this we add the break of the long-lived dictatorship of Franco was with our liberal tradition, can be established any real identity with the constitutionalism prior to 1923, and 1936?

Obviously, constitutions are molded into the vacuum, even if they respond to principles radically novel. But the debts of the 1978 Constitution are more intense with the foreign models, especially with the Fundamental Law of Bonn, or the constitutions, Italian, Portuguese and French. Until the nordic and the Dutch influenced the redefinition of the role of the Crown.

in principle, no objection to the result of this. With the nuances imposed by the political traditions of each country, there is a substrate constitutional, common to all western european. Therefore, the adaptation of principles and mechanisms of the nations of our environment is an advantage provided that they respond to political problems indigenous. And, of course, provided that these mechanisms are sufficiently tested in their countries of origin.

Another thing is the imitation of institutions and practices prestigious to the margin of the whole experience. In this case, ignore the constitutional traditions of each country, subtract all efficacy to the transplant. By taking an example of today, has been prophetic of the skepticism with which a famous author, Joaquín Tomás Villarroya, received in an article of 1979, the introduction of the vote of censure constructive in our Constitution, a mere copy of the model German. Villarroya already anticipated that it will only be effective if in Spain took root a party system simplified and solid as it had been the German since 1949. When this has ceased to occur, two of the fundamental requirements of the constructive motion, a program of alternative government and the conversion of the majority that censorship in majority of government, have been touched on in 2018.

here, therefore, it makes sense to rethink the Constitution of 1978 in the light of our own constitutional experience and, especially, the problems of articulation of liberalism and democracy. Now that both speaks of the need to update the Constitution, the lesson of our founding fathers can be helpful. They are not ignored historical problems that, with few exceptions, can be considered as already resolved. This is not measured in the number of items adapted from previous texts. His exercise of constitutional engineering was rather in building up discarding, that is, to reject principles or mechanisms already tested in Spain and were not functional.

Thus, of a constitutional model as the of 1812, turned into a fetish so emotional as poorly known, the Constitution of 1978 took three elements: the Permanent committee of the Cortes, which secures the control of parliament out of session; the fundamental principle of the declaration of rights, and, filtered through the principles of the social State of the TWENTIETH century, the enunciation of a "horizon utopian" constitutional, " in the words of Elias Diaz. That is to say, the statement as rights of a catalogue of aspirations (to work, to decent housing, to health, to the quality of life, the environment,...) that are reminiscent of the claim for the constitution of 1812 to convert the spaniards being "fair and beneficial". The inclusion of so adventurous desires would not be harmful if these rights did not have a signification so ambiguous, were not limited by the resources available, not remaining to be normative for the Constitution, and would not, in the long run, a potential deslegitimador, which is born of the persistent contrast between utopia and reality.

The Constitution of 1978 is closer to that of 1837, 1845, 1869 and 1876 with regard to the institutional design. The shortcomings observed in the implementation of the 1812 did that, throughout the NINETEENTH and with the only exception to this practice of the First Republic, no one arose to copy his radical separation of powers and the supremacy, almost no brake or counterweight, a unicameral Parliament, with its sequel of pugilato constant between the Courts and the government of the King. Principles now enshrined as the bicameralidad, the suffrage individual direct and secret, the parliamentary oversight, the joint Council of Ministers and the ministerial responsibility, the votes of confidence and censure, veto legislative or dissolution authority of the Cameras, they correspond much more with the rich experience of constitutional and parliamentary open in 1834. It was then when the Royal Statute, the law of political reform, then, allowed to implement the regime representative in Spain.

But the Constitution of 1978 has reformulated all of those principles in a more modern and functional. As text democratic, it is the only one who consecrates outright, in front of the omissions of its predecessors and the constraints of gender, 1869, or 1931, the suffrage as a right of all spaniards of legal age. In addition, it establishes a true parliamentary Monarchy by moving the King to a function unambiguously arbitrator and moderator. The apartarle of any exercise of direct power, it safeguards your figure wear political that, prior to 1936, they took over the Crown and the Presidency of the Republic. In addition, the Constitution has designed for the first time a real Judiciary, has democratized the access to the upper Chamber, has recognised the political parties and has managed to acclimatize in Spain the parliamentary system is streamlined, implying a certain stability and a work of effective government. Of the Law of Political Reform of 1976, the real Magna Charter of the Transition, took the elements of the electoral system which continues to guide.

Within this substrate of history, the Constitution of 1931 was not only a countermodel, since it provided three important elements. One was the creation of a tribunal to control the constitutionality of laws and protect freedoms. Another, the regulation of popular legislative initiative. And the most important of these was the autonomous State. The "State integral" republican was in 1978 a reference in order to limit the distribution of competences between the central power and the regional, and the requirements and the procedure of access to the autonomy. Unlike the federal Constitution of 1873, which established the States that made up Spain, 1931 and left the initiative to the territories. This mode was introduced in our constitutionalism that the principle autonomous and are ruled by the centralized model or limited to a decentralization administrative.

Roberto Villa is a professor of Political History at the Universidad Rey Juan Carlos, author of Spain at the polls. A story election (2016) and co-author of 1936. Fraud and violence in elections of the Popular Front (2017).

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